Updated: April 10, 2008

Depending on one’s perspective, US citizenship can be either (1) a precious and inalienable right, (2) a handy document making work and travel more convenient, or (3) a nuisance that exposes one to taxes and other obligations one would rather do without.

Having It – US Citizenship from Birth

Birth in the US
With very few exceptions everyone who is born within the United States is automatically a US citizen. Citizenship is conferred on the child regardless of the citizenship or US immigration status of the parents. In fact, even the parents’ wishes are irrelevant; parents cannot renounce US citizenship on behalf of their minor children.

Birth Abroad
Citizenship may be transmitted to a child born outside the United States if at least one of the parents is a US citizen. Whether transmission has occurred depends upon a number of factors—the date of the child’s birth, whether the birth took place in or out of wedlock, whether only one or both of the parents are US citizens.

Children Born in Wedlock
A child born outside the US to parents who are married at the time of the birth will be a US citizen if either of the two following situations obtains. First, if both of his parents are US citizens and at the time of birth at least one of them previously resided in the US for any period of time. Second, a child born on or after 14 November 1986, if only one of his parents is a citizen at the time of birth, will be a US citizen if his or her US citizen parent was physically present in the US, legally or illegally, for at least five years before the child’s birth; at least two years of that time must have been after the age of 14.

If the child was born between 24 December 1952 and 14 November 1986 the rules are slightly different. In such a case if only one parent is a US citizen, that parent must show 10 years’ physical presence in the US, legally or illegally, five of which must have been after the age of 14.

There is no longer any requirement that a US citizen child, to retain his or her citizenship, must reside in the US for any particular period of time. The retention requirement was repealed effective 10 October 1978 and is inapplicable for any child born on or after 10 October 1952. Persons who lost their US citizenship through failure to meet the residence requirement may have their citizenship restored upon taking an oath.

Children Born Out of Wedlock
The rules for children born out of wedlock outside the US are more complex and a child’s claim to citizenship will differ depending on whether it is the mother or the father who is the US citizen. A child born out of wedlock to US citizen mother will be a citizen from birth if the mother, before the child’s birth, had one continuous year of physical presence in the United States. A child born out of wedlock to a non US citizen mother and a US citizen father who does not either legitimate or acknowledge the child does not acquire US citizenship at birth.

If a child born out of wedlock to a US citizen father is legitimated or formally acknowledged by the father the child may be a US citizen, depending on other factors such as whether the father, prior to the birth, had met US residence requirements in effect at the time, and whether the father had promised to provide financial support for the child until the child turned 18 years of age.

Getting It – Automatically or by Naturalization

Child Citizenship Act of 2000
The Child Citizenship Act of 2000 (‘CCA 2000’) enables certain biological and adopted foreign-born children of US citizens to acquire US citizenship automatically when they enter the US as lawful permanent residents and by naturalization.

To obtain the benefits of CCA 2000 the child must (1) have at least one US citizen parent, (2) be under the age of 18, (3) live in the physical and legal custody of the US citizen parent and (4) be admitted for permanent residence as an immigrant. The biological child will acquire citizenship automatically upon entry. An adopted child will acquire citizenship on the date the adoption becomes full and final in the US.

The CCA 2000 also provides that biological or adopted children of US citizens who are born outside the US and who reside abroad, and who did not acquire US citizenship at birth, can apply to the US Citizenship and Immigration Services for a certificate of citizenship by a naturalization process. For the child to be eligible, the following requirements must be satisfied: (1) at least one parent is a US citizen by birth or by naturalization; (2) the US citizen parent or US citizen grandparent has been physically present in the US for at least five years at least two of which were after the age of 14; (3) the child is under the age of 18; (4) and the child is residing outside the US in the physical and legal custody of the American citizen parent. If the requirements are satisfied, an application for naturalization can be filed with the USCIS from outside the US. When the application is approved the child must then enter the US, usually with a B-2 visitor's visa, to take an oath of allegiance, which may be waived if the child is too young to understand it, and become a US citizen.

Naturalization
Persons who were not born US citizens may also acquire citizenship through the process of naturalization. There are five primary requirements: The applicant must be age 18 or older; have been lawfully admitted for permanent residence; fulfil the US residence requirements; be of good moral character; and demonstrate English literacy and basic knowledge of US civics. One must also demonstrate attachment to the principles of the Constitution, favourable disposition to the good order and happiness of the United States, and take an oath of allegiance. We will first describe the usual procedure; to learn about expedited procedures available in certain circumstances click here.

Aged 18 years or Older At the Time of Filing
There are two exceptions to this straightforward requirement. Persons under the age of 18 may apply for naturalization if they served honourably in the US armed forces during a time of war or declared hostilities. Such a period of ‘declared hostilities’ in the form of the war on terrorism became effective September 11, 2001 as declared by President George W. Bush on July 3, 2002. The second exception is for some children of US citizens and is discussed in a later section of this article. To go to that section, click here.

Status as a Lawful Permanent Resident
Applicants for naturalization must have been lawfully admitted as permanent residents. It is not enough to hold a green card as a permanent resident; that ‘green card’ status must have been lawfully acquired.

Once again, there are two exceptions to the rule that a person must first become a lawful permanent resident before applying for naturalization—for persons who served honourably in the US armed forces, as set forth above, and for qualifying children of US citizens.

Other exceptions are made for some children of US citizens; click here.

Residence in the United States
The residence requirement has four subcategories: Continuous residence, physical presence, residence within the US state or immigration service district, and residence between the filing of the application and admission to citizenship. According to the US Citizenship and Immigration Services (‘USCIS’), an agency of the Department of Homeland Security, Congress enacted the residence requirement ‘to afford the applicant an opportunity to learn the country's language and the essential facts of its history and government, as well as to demonstrate his ability to conduct himself in the manner of a law-abiding citizen.’

Continuous Residence
Naturalization applicants must generally show five years of continuous residence after the grant of lawful permanent resident status. Applicants married to and living in marital union with US citizens need only three years’ continuous residence rather than five. The three-year period of residence is also applicable to a child of a US citizen and a person who was married to a US citizen and obtained permanent residence status as a self-petitioner under the Violence Against Women Act. The naturalization application may be filed up to three months before the end of the five (or three) year period, but the full five/three year requirement must be satisfied before naturalization will be granted.

‘Continuous residence’ is not broken by absences of six months or less. An absence of between six months and a year will break the continuous period of residence unless the applicant can show, by a preponderance of the evidence, that he did not in fact abandon his residence. An absence of one year or more will break the continuous residence period, unless the applicant comes within an exception for employees of certain US government agencies, US companies, or certain international groups, and the applicant has filed an application to preserve residence for naturalization purposes.

Physical Presence
In order to qualify for naturalization most applicants must also show that they have been physically present in the US for at least one-half of the required residence period. Therefore the spouse of a US citizen, living in marital union, would need to demonstrate actual physical presence for 18 months in the required three-year period of continuous residence; most other applicants would need to show actual physical presence of 30 months within the required five-year residence period.

Residence in State or Immigration Service District
The third subcategory of the residence requirement mandates that in the three months immediately prior to the filing of the naturalization application the applicant must have resided within the state or immigration service district in which the application is to be filed. If the application is filed early then the applicant must show, at his interview, that he or she has lived in the state or district for the three months immediately preceding that interview.

Residence Between Application Filing and Grant of Citizenship
Finally, the applicant must have resided continuously within the United States from the date the application was filed until the time citizenship is granted.

Good Moral Character
An applicant for naturalization must demonstrate good moral character during the statutory period of residence (either three or five years, as set out above). The applicant is not required to have lived a perfect life. Rather, the USCIS defines the requirement to mean ‘character which measures up to the standards of average citizens of the community in which the applicant resides, and thus does not necessarily require the highest degree of moral excellence.’ Conduct outside the statutory period may be considered if the USCIS examiner does not believe that the applicant has reformed, or if the earlier conduct appears relevant to a determination of the applicant’s present moral character.

English Language Requirements and Knowledge of History, Principles, and Form of Government of the United States
Applicants must demonstrate an ability to read, write, and speak words in ordinary usage in the English language. The reading and writing of ‘simple words and phrases’ in English are required. Exemptions are available to persons unable to comply due to permanent disability, and the literacy test may be given in the native language of an alien who is either more than 50 years old and has resided in the US for more than 20 years as a lawful permanent resident, or who is over 55 years old and has 15 years of such residence.

Applicants must also pass an oral examination on the fundamentals of the history, and of the principles and form of government, of the United States. If an applicant is exempt from the English language requirement the examination may be administered in the applicant’s native language. The examination will be waived as to aliens physically unable to comply with the requirement, and special consideration in the form of an abbreviated list of examination questions has been made for aliens over 65 years of age who have been permanent residents for more than 20 years.

Additional Requirements
An applicant for naturalization must also demonstrate that he or she is ‘attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.’ After satisfying all other requirements the applicant must take an oath or affirmation of allegiance to the United States.

Expedited Naturalization
In addition to the special rules for persons in the military, expedited procedures are available to naturalize certain children of US citizens and the spouses of some US citizens working abroad.

The CCA 2000 allows a US citizen parent to obtain a certificate of citizenship for his or her non US citizen child if the US citizen parent has been physically present in the United States for five years, at least two of which were after attaining the age of 14. The child must be under the age of 18, residing outside the United States in the legal and physical custody of the US citizen parent, and must be temporarily present in the United States in lawful status.

If the US citizen parent does not meet the physical presence requirement, the child can still be naturalized if either of the following two sets of requirements can be met: First, the child is under the age of 18 and is lawfully present in the US as a lawful permanent resident. Alternatively, the child is under the age of 18, has been legally admitted to the United States, and the child has a grandparent (the parent of the US citizen) who has been physically present in the United States for five years, two of which are after the grandparent attained the age of 14. A child may qualify for naturalization through a deceased grandparent if the child meets the other requirements and the grandparent had satisfied the physical presence requirement at the time of his or her death.

Certain spouses of US citizens employed abroad can apply for naturalization without satisfying the normal residence requirements for naturalization. Expedited naturalization is possible where the alien is a lawful permanent resident married to a US citizen who is either employed outside the United States by the US Government, a US research institution designated by regulation, or a public international organization in which the US participates, or is a minister, priest or missionary performing duties abroad. Expedited naturalization is also available where the US citizen spouse is employed outside the United States by an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States. In all cases the US citizen spouse must be regularly stationed abroad in his or her employment. The alien spouse must have the intent to join or accompany the US spouse abroad and to return immediately to the United States upon termination of the US spouse’s employment abroad.

Losing It - Giving It Up

The following is a brief summary of the procedure by which US citizenship can be relinquished or renounced. Anyone considering expatriation should obtain both immigration and tax advice before taking such a step.

There are two ways a person may lose his or her US citizenship. The first is rescission of citizenship, known as ‘denaturalization.’ This is applicable only to naturalized citizens and is outside the scope of this article.

The second way to expatriate oneself is to voluntarily perform any of the following acts with the intention of relinquishing citizenship:

1. Obtaining naturalization in a foreign state after attaining the age of 18;
2. Taking an oath or other formal declaration of allegiance to a foreign state after attaining the age of 18;
3. Entering the armed forces of a foreign country if either
a. the armed forces are engaged in hostilities against the US; or
b. the person serves as a commissioned or non-commissioned officer;
4. Accepting employment or performing the duties of any office or post with a foreign government after attaining the age of 18, if
a. one has or acquires the nationality of that foreign state or
b. a declaration of allegiance is required in accepting the position;
5. Formally renouncing US citizenship before a US diplomatic or consular officer outside the US;
6. Formally renouncing US citizenship in writing within the US in time of war; or
7. Committing an act of treason for which one is convicted.

For citizenship purposes, the effective date of loss of citizenship is the date the person performs the potentially expatriating act.

The actions listed above can cause loss of US citizenship only if performed voluntarily and with the intention of relinquishing US citizenship. In this regard, the US Department of State (the US government agency responsible for determining the US citizenship status of a person who is outside the US), has a uniform standard of evidence which presumes that a US citizen intends to retain citizenship when he or she obtains naturalization in a foreign state; subscribes to a routine declaration of allegiance to a foreign state; or accepts a non-policy level employment with a foreign government. A ‘routine declaration of allegiance’ is generally one which does not contain a provision requiring the person to renounce former allegiances.

In light of the Department of State’s administrative premise, a person who:

1. is naturalized in a foreign state,
2. takes a routine oath of allegiance, or
3. accepts a non-policy level employment with a foreign government,

and in so doing intends to retain US citizenship, will simply be asked by a US consular officer if he or she intended to relinquish citizenship status when performing the act. If the answer is ‘no’, the consular officer will certify that it was not the person’s intent to relinquish citizenship and a finding will be made that the person has retained citizenship.

A person who answers ‘yes’ when asked whether he or she intended to relinquish citizenship at the time of performing a potentially expatriating act will be asked to complete a questionnaire to ascertain his or her intent. When that has been accomplished, and the person has signed a voluntary relinquishment statement, a Certificate of Loss of Nationality (‘CLN’) will be prepared and forwarded to the Department of State for approval. Thus, a person who has performed any of the potentially expatriating acts set out above, and who wishes to lose US citizenship, may do so by affirming in writing to a US consular officer that the expatriating act was performed voluntarily and with the intent of relinquishing citizenship.

Renunciation of Citizenship
A US citizen always has the option of voluntarily relinquishing US citizenship by formally renouncing his or her citizenship status before a diplomatic or consular officer in a foreign state. A person wishing to renounce US citizenship must appear in person before such a US official, in a foreign country--normally at a US embassy or consulate—and sign an Oath of Renunciation.

Thus, US citizens cannot renounce citizenship while in the US (except in time of war), nor can parents renounce citizenship on behalf of their minor children. A US citizen under the age of 18 must convince a diplomatic or consular officer that he or she understands fully the nature and consequences of the oath of renunciation and is voluntarily seeking to renounce his or her US citizenship. If a US citizen child is under the age of 14, US common law requires that the child’s understanding be established by substantial evidence.

The US Department of State has determined that there can be no intent to relinquish US citizenship if the renunciant intends to continue to reside in the US unless the renunciant demonstrates that any residence will be as an alien properly documented under US immigration laws.

Renunciation of US citizenship is irrevocable and cannot be set aside without administrative or judicial appeal, except in the case of a former US citizen who officially renounced his or her citizenship prior to attaining the age of 18. Such a renunciant can have citizenship reinstated if he or she makes known that desire to the Department of State within six months of attaining the age of 18.

When a determination of loss of citizenship has been approved by the Department of State, the Department issues a Certificate of Loss of Nationality (‘CLN’) which is sent to the former US citizen, together with that person’s cancelled US passport. The CLN will state that citizenship was lost at the time of renunciation or when another expatriating act was performed with the intention to relinquishing US citizenship.

When a former US citizen has expatriated, that person will be subject to the immigration laws of the US the same as any other alien, including being subject to all of the grounds of ineligibility for visas and inadmissibility to the US.

Expatriates who Renounce Citizenship for Tax Purposes
In 1996 Congress enacted immigration legislation amending the grounds of ineligibility for visas and of inadmissibility to the US. Under that section of the law, known as ‘the Reed Amendment,’ any former US citizen who officially renounces US citizenship and who is determined by the Attorney General to have renounced for the purpose of avoiding taxation by the US is inadmissible to the United States and ineligible for a visa. This exclusion applies only to former US citizens who lost citizenship by officially renouncing citizenship on or after September 30, 1996. Although threatening to do so, the US government has not as yet enacted regulations implementing this permanent ground of ineligibility for visas and inadmissibility to the US.

Conclusion
US law provides a complicated scheme for acquiring US citizenship, transmitting it to one’s children (or not), and even relinquishing it. This short article cannot possibly cover all permutations of the law, and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful you should consult a qualified US immigration attorney.